Court of Appeal Denies Leave in Coroners Act Case

TORONTO - October 3, 2008 - The Ontario Court of Appeal has refused to hear an appeal from the decision of the Divisional Court of the Ontario Superior Court of Justice respecting whether the Coroners Act contravenes the Ontario Human Rights Code

The original decision in the case was released by the Human Rights Tribunal of Ontario in May 2006. Tribunal Chair and retired Supreme Court of Canada judge the Honourable Peter Cory found that in failing to mandate inquests into all deaths in psychiatric detention while doing in respect of all other deaths in custody, the Coroners Act contravened Ontario’s Human Rights Code. The decision followed many years of complaints that scant attention is paid to the deaths of persons who die while involuntarily detained in psychiatric facilities.

The Attorney General of Ontario appealed and a Divisional Court panel of Justices John Jennings, Sidney Lederman and Katherine Swinton reversed the decision in December 2007 and dismissed the complaints.  Complainant Renata Braithwaite and the Human Rights Commission both brought motions for leave to appeal to the Ontario Court of Appeal. Such motions are heard in writing. As is customary, the Court of Appeal provided no reasons for denying leave.

Marshall Swadron represented the intervenors Mental Health Legal Committee, Empowerment Council and the Psychiatric Patient Advocate Office in the hearings before the Tribunal and in the Divisional Court.  He indicated that the intervenors, who comprise a broad cross-section of persons with mental disorder and their advocates, are devastated by the reversal of fortunes in a case that held such promise in reducing the prevalence of death and serious injury in Ontario's psychiatric hospitals.

Swadron also noted that there was some irony in the result as the Divisional Court had reversed the Human Rights Tribunal's finding on the ground that the Tribunal had failed to state explicitly how the distinction in the Coroners Act impacted human dignity. This requirement was based on a literal reading of the 1999 Supreme Court of Canada decision in Law v. Canada, which the Supreme Court disavowed in its more recent decision in R. v. Kapp released on June 27, 2008. 

For more information about the case, please click here.   To read the full text of the Divisional Court's decision, please click here.  To read the full text of the Tribunal’s reasons for decision please click here.  The Law v. Canada  and R. v. Kapp decisions can be viewed using the highlighted links above.